Gonzales v. Harrington

Filing 12

ORDER Granting 10 Motion to Dismiss; DENYING CERTIFICATEOF APPEALABILITY. Signed by Judge Edward J. Davila on 6/20/2011. (ecg, COURT STAFF) (Filed on 6/20/2011)

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANASTACIO GONZALES,
Petitioner,

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No. C 10-01299 EJD (PR)

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vs.

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KELLY HARRINGTON, Warden,
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Respondent.
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ORDER GRANTING MOTION TO
DISMISS; DENYING CERTIFICATE
OF APPEALABILITY

(Docket No. 10)

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Petitioner, a state prisoner incarcerated at the Kern Valley State Prison in

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Susanville, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254,

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challenging his state conviction. Respondent has moved to dismiss the petition as

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unexhausted. (Docket No. 10.) Petitioner did not file an opposition although he was

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given an opportunity to do so. For the reasons discussed below, the Court grants

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Respondent’s motion to dismiss.

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BACKGROUND

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According to the petition, Petitioner was found guilty in Santa Clara County

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Superior Court of five counts of Penal Code § 269 (rape). (Pet. 2.) Petitioner was
Order Granting Motion to Dismiss
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sentenced to 75 years in state prison. (Id.)
Petitioner appealed the conviction; the state appellate court affirmed the conviction

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and the state high court denied review. (Id. at 3.) Petitioner filed the instant federal

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habeas petition on March 26, 2010.

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DISCUSSION

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A.

Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a

person in custody pursuant to the judgment of a State court only on the ground that he is

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall “award

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the writ or issue an order directing the respondent to show cause why the writ should not

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be granted, unless it appears from the application that the applicant or person detained is

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not entitled thereto.” 28 U.S.C. § 2243.

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Prisoners in state custody who wish to challenge collaterally in federal habeas

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proceedings either the fact or length of their confinement are first required to exhaust

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state judicial remedies, either on direct appeal or through collateral proceedings, by

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presenting the highest state court available with a fair opportunity to rule on the merits of

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each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c);

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Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3

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(1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The state’s highest court

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must be given an opportunity to rule on the claims even if review is discretionary. See

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O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke “one complete

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round of the State’s established appellate review process.”).

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Even though non-exhaustion is an affirmative defense, the petitioner bears the

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burden of proof that state judicial remedies were properly exhausted. Parker v. Kelchner,

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429 F.3d 58, 62 (3d Cir. 2005); Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003);

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Winck v. England, 327 F.3d 1296, 1304 n.6 (11th Cir. 2003); see Darr v. Burford, 339
Order Granting Motion to Dismiss
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U.S. 200, 218-19 (1950) (“petitioner has the burden... of showing that other available

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remedies have been exhausted”), overruled on other grounds, Fay v. Noia, 372 U.S. 391

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(1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (affirming summary

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judgment for respondent because, although petitioner alleged he had exhausted, “there is

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nothing in the record” to show it).
If available state remedies have not been exhausted as to all claims, the district

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court must dismiss the petition. See Rose v. Lundy, 455 U.S. at 510; Guizar v. Estelle,

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843 F.2d 371, 372 (9th Cir. 1988).

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B.

Motion to Dismiss
Respondent moves to dismiss the instant petition for failure to exhaust because

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Petitioner failed to exhaust four of his six claims in the California Supreme Court. (Mot.

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to Dismiss at 2.) Respondent contends that Petitioner alleged the following claims in the

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instant petition: 1) ineffective assistance of counsel for failure to file a motion to suppress

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the testimony of two witnesses; 2) trial court error for the admission of testimony by a

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medical expert about the lack of lingering trauma; 3) trial court error for the admission of

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evidence of uncharged sexual abuse of Petitioner’s sister; 4) ineffective assistance of

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counsel because Petitioner was unaware of his constitutional rights at trial; 5) and 6)

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ineffective assistance of counsel because defense counsel told petitioner did not want to

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be his attorney. (Id. at 2-3.) Respondent admits that Petitioner exhausted claims 2 and 3

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in the California Supreme Court by raising them in his petition for review, (id., Ex. C),

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but asserts that Petitioner did not raise claims 1, 4, 5 and 6. (Id. at 3.) Accordingly,

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Respondent argues that the Court should dismiss the petition as unexhausted. (Id.)
Petitioner has not filed opposition to show that he properly exhausted his state

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remedies contrary to Respondent’s contention. Therefore, Petitioner has failed to meet

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his burden of proof that state judicial remedies were properly exhausted with respect to all

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the claims presented in the instant petition. See Parker, 429 F.3d at 62.

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Order Granting Motion to Dismiss
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CONCLUSION

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For the foregoing reasons, Respondent’s motion to dismiss the petition for failure

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to exhaust state judicial remedies, (Docket No. 10), is GRANTED. See Rose v. Lundy ,

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455 U.S. at 510.

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No certificate of appealability is warranted in this case. See Rule 11(a) of the

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Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on

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certificate of appealability in same order that denies petition). Petitioner has not shown

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“that jurists of reason would find it debatable whether the petition states a valid claim of

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the denial of a constitutional right and that jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

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U.S. 473, 484 (2000).

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This order terminates Docket No. 10.

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DATED:

June 17, 2011

EDWARD J. DAVILA
United States District Judge

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Order Granting Motion to Dismiss
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ANASTACIO GONZALES,

Case Number: CV10-01299 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
KELLY HARRINGTON, Warden,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
6/20/2011
That on
, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s)
hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into
an inter-office delivery receptacle located in the Clerk's office.

Anastacio Gonzales F-34323
Pleasant Valley State Prison
P. O. Box 8500
Coalinga, CA 93210
Dated:

6/20/2011

Richard W. Wieking, Clerk
Elizabeth Garcia, Deputy Clerk

/s/ By: